Defendant appeals as of right his jury trial convictions for three counts of assault with
intent to do great bodily harm less than murder, MCL 750.84, and arson, MCL 750.72. He was
sentenced to fifty-seven months to ten years? imprisonment for each of the three assault
convictions, and ninety-six months to twenty years? imprisonment for the arson conviction, the
four sentences to run concurrently. We affirm.
Defendant first argues on appeal that the trial court erred in instructing the jury regarding
flight, because either the instruction was not supported by the evidence, or the evidence of
defendant?s flight was used as substantive evidence, which defendant contends is an improper
purpose. We disagree.
?Claims of instructional error are reviewed de novo.? People v Milton, 257 Mich App
467, 475; 668 NW2d 387 (2003). In doing so, this Court examines the jury instructions as a
whole. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). Jury instructions must
include all the elements of the charged offense and must not exclude material issues, defenses,
and theories if the evidence supports them. Milton, supra at 475; People v Canales, 243 Mich
App 571, 574; 624 NW2d 439 (2000). Instructions must not be extracted piecemeal to establish
error. Aldrich, supra at 101. ?Even if somewhat imperfect, instructions do not create error if
they fairly presented the issues for trial and sufficiently protected the defendant’s rights.?
Canales, supra at 574.

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In the case at bar, the trial judge gave the jury the following instruction, which
paraphrases CJI2d 4.41:
Now there has been some evidence that the defendant ran away after the
allege [sic] offense. That evidence does not prove guilt. A person may run or
hide for innocent reasons such as panic, mistake or fear. Or the person may run
because of consciousness of guilt. You have to decide if it was the defendant and
if he ran and if so whether that shows consciousness of guilt.
Though he substituted the phrase ?consciousness of guilt? at the end, this was a proper
substitution. People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995); People v Cutchall,
200 Mich App 396; 504 NW2d 666 (1993).
?It is well established that jurors are presumed to follow their instructions.? People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Defendant?s bare assertion that ?the
evidence was used as substantive of his guilt,? is insufficient to overcome the presumption that
the jurors in the case at bar followed the judge?s instruction. Id.
Furthermore, there was sufficient evidence to justify giving a jury instruction on flight. A
witness who was familiar with defendant testified that within a short time after the fire started in
the house in which she was sleeping, she saw defendant ?running away from the side window?
of the burning house, through which a ?firebomb? had just come. That witness further testified
that she saw defendant?s face. Another witness testified that after the fire she saw nearby the tan
van that defendant had been driving for some time. The owner of the firebombed house testified
that immediately after the fire, she saw a beige or tan van driving down the street past her home
as it burned. Given this evidence, it cannot be said that the trial court erred in instructing the
jury.
Defendant next argues that the trial judge demonstrated prejudice and bias against him,
and the trial court erred in failing to disqualify the judge. We disagree.
This Court reviews for an abuse of discretion the factual findings made by a chief judge
(during his de novo review of the trial judge?s decision on a motion for disqualification).
However, it reviews de novo the applicability of the facts to the relevant law. Cain v Michigan
Dept of Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996); Van Buren Twp v Garter Belt,

1 CJI2d 4.4 reads:
(1) There has been some evidence that the defendant [tried to run away / tried to hide /
ran away / hid] after [the alleged crime / (he / she) was accused of the crime / the police arrested
(him / her) / the police tried to arrest (him / her)].
(2) This evidence does not prove guilt. A person may run or hide for innocent reasons,
such as panic, mistake, or fear. However, a person may also run or hide because of a
consciousness of guilt.
(3) You must decide whether the evidence is true, and, if true, whether it shows that the
defendant had a guilty state of mind.

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Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003). ?[A]n abuse of discretion exists when an
unprejudiced person, considering the facts on which the trial court acted, would conclude that
there was no justification or excuse for the ruling made.? People v Tate, 244 Mich App 553,
559; 624 NW2d 524 (2001). The party moving for disqualification bears the burden of proving
actual bias or prejudice. People v Bero, 168 Mich App 545, 549; 425 NW2d 138 (1988).
?[D]isqualification is not warranted unless the bias or prejudice is both personal and
extrajudicial. Thus, the challenged bias must have its origin in events or sources of information
gleaned outside the judicial proceeding.? Cain, supra at 495-496.
Based on the evidence defendant adduced, he did not meet his burden of establishing that
the trial judge had a personal bias or prejudice against him originating in events or sources of
information gleaned outside the judicial proceeding, and consequently, Chief Judge Kenny did
not err in denying defendant?s motion for disqualification.
MCR 2.003(B)(1) states that a judge is disqualified when the judge cannot impartially
hear a case, including, but not limited to, instances in which the judge is personally biased or
prejudiced for or against a party or attorney. Defendant argues on appeal that the trial judge?s
conduct at the hearing on his motion to appoint new counsel evinced personal bias or prejudice.
We disagree.
At the hearing on defendant?s motion to disqualify, the trial judge stated that he did not
bear defendant any animosity and gave the following explanation of his actions at the earlier
hearing:
My comments to Mr. Johnson were directed to his failure to disclose to the
attorney that he was dissatisfied with him and the failure to disclose the grievance,
all of which made it appear that if what he was doing was just trying to
manipulate that result and there?s good precedent for those observations. I don?t
have anything against Mr. Johnson.
On de novo review of the trial judge?s decision, the chief judge noted that that the trial judge had
granted defendant?s motion for appointment of new counsel at the hearing at which defendant
alleged he revealed his bias. The chief judges stated:
In this particular matter I think it?s true that [the trial judge] was less than
happy with what I think he viewed as a less than substantial reason being offered
by [defendant] in order to get [a new] attorney . . . I think it is clear to me from
reading the transcript that [the trial judge] thought that in addition to his knowing
[defendant?s original attorney] and knowing that [he] is an excellent attorney, felt
that the reasons bring [sic]offered were pretty weak, and I think [the trial judge]
was very candid in his saying that. . . . I think that [the trial judge] has not
demonstrated a bias in fact toward defendant that will impact on this trial.
This Court, relying heavily on Cain, supra, stated in Schellenberg v Rochester Michigan
Lodge No 2225, of Benev and Protective Order of Elks of USA, 228 Mich App 20, 39; 577
NW2d 163 (1998):

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Absent actual personal bias or prejudice, a judge will not be disqualified.
Opinions formed by a judge on the basis of facts introduced or events occurring
during the course of the current proceedings, or of prior proceedings, do not
constitute bias or partiality unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Likewise, judicial
remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. Moreover, a party who challenges a judge on the basis of
bias must overcome a heavy presumption of judicial impartiality. [Citations
omitted.]
Defendant has not presented any evidence that the alleged bias or prejudice originated in
events or sources of information gleaned outside the judicial proceedings. His allegations are
based solely on statements made by the judge during the hearing on defendant?s motion to
appoint new counsel. The judge?s comments appear to be nothing more than remarks ?critical or
disapproving of, or even hostile to [defendant], . . . or [his] case[ ],? or ?expressions of
impatience, dissatisfaction, annoyance, and even anger? that are equally ineffective for the
purpose of establishing bias or prejudice. Cain, supra at 497 n 30. While it is true that events
originating in the proceedings can be characterized as ?bias? or ?prejudice,? if they ?display a
deep-seated favoritism or antagonism that would make fair judgment impossible[,]? Cain, supra
at 496, in the case at bar, the alleged comments by the trial court judge cannot reasonably be said
to do this. On this point, it is significant that defendant does not allege that the trial judge made
an unfair decision at the hearing on the motion for appointment of new counsel, which it seems
likely he would have done had he actually felt such antagonism.
Given that defendant did not meet his burden of establishing that the trial judge had a
personal bias or prejudice against him, it cannot reasonably be said that an unprejudiced person,
considering the facts on which the trial court acted, would conclude that there was no
justification or excuse for the chief judge?s finding that the trial judge was not biased.
Defendant next contends that the trial court erred in granting the prosecution?s motion to
consolidate in a single trial the assault he committed on December 31, 2001, and the assaults and
arson he committed on January 6, 2002. He contends that the offenses were not ?related? and
therefore had to be tried in separate trials. We disagree.
This Court reviews de novo whether joined offenses are related as a matter of law and
subsequently eligible for joinder. MCR 6.120(B); People v Tobey, 401 Mich 141, 153; 257
NW2d 537 (1977). A trial court’s decision to deny a defendant’s motion for severance of related
offenses is reviewed for an abuse of discretion. People v Duranseau, 221 Mich App 204, 208;
561 NW2d 11 (1997). For purposes of MCR 6.120, two offenses are related if they are based on
the same conduct, or a series of connected acts or acts constituting part of a single scheme or
plan. MCR 6.120(B)(1) and (B)(2); Tobey, supra at 153.
MCR 6.120 provides that ?An information or indictment may charge a single defendant
with any two or more offenses. Each offense must be stated in a separate count. Two or more
informations or indictments against a single defendant may be consolidated for a single trial.?
MCR 6.120(B) provides an unqualified right to severance of unrelated offenses: ?On the
defendant’s motion, the court must sever unrelated offenses for separate trials. For purposes of

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this rule, two offenses are related if they are based on (1) the same conduct, or (2) a series of
connected acts or acts constituting part of a single scheme or plan.? MCR 6.120(C) sets out the
procedure for joining or severing charges other than those severed pursuant to defendant?s right
to severance of unrelated offenses. It states: ?On the motion of either party, except as to
offenses severed under subrule (B), the court may join or sever offenses on the ground that
joinder or severance is appropriate to promote fairness to the parties and a fair determination of
the defendant’s guilt or innocence of each offense.? The remainder of MCR 6.120(C) lists
factors relevant to promoting fairness to the parties and a fair determination of the defendant’s
guilt or innocence.
In granting the prosecution?s motion, the trial judge stated: ?There?s nothing legally
prejudicial about it and the offenses are related and you don?t have a right to have related
offenses severed, but I do have the discretion to join them and I find that they?re related and I can
consolidate them in a single trial when he could have been charged in the same information.?
Read in context, this holding appears to be based on finding that the arson was a continuation of
the argument that initially erupted during the incident that culminated in the December 31, 2001,
assault. The trial judge stated:
Well, the incidents themselves ? it?s not the same transaction, but she?s
saying they?re related. What she just said indicates they are related. She?s saying
there?s a felonious assault and an argument and then they moved out and the
defendant tracked them down . . . and firebombed the house so that?s a relation.
Nowhere does he expressly state on which of the grounds listed in MCR 6.120(B)(2) his
determination of ?relatedness? was based. However, the offenses were related for the purposes
of MCR 6.120 because they were based on ?a series of connected acts or acts constituting part of
a single scheme or plan.? MCR 6.120(B)(2). In the case at bar, it appears possible that less time
elapsed between the offenses in the case at bar than between those in People v Miller, 165 Mich
App 32, 45; 418 NW2d 668 (1987), aff?d 186 Mich App 660; 465 NW2d 47 (1991).2 Testimony
was presented to indicate that defendant on December 31, 2001, was planning, at some
unspecified future date, to kill everyone present during the assault. One of the witnesses
testified that after committing the assault, defendant said: ?I?mma kill all of y?all.? Defendant?s
wife was presumably an object of defendant?s threat that day, since she was present. She was
also present during the arson. The prosecution also presented evidence that the plan to kill
continued during the time between December 31, 2001, and January 6, 2002, the date of the later
assaults and arson. Defendant?s wife testified that on January 2, 2002, ?[defendant] said he was
going to kill all of us in the house.? She also testified that at some unspecified point before the
assaults and arson, defendant had told her: ?If your family ever cross me any kind of way, I?m
gonna kill them and I?m going to blow their house up.? The evidence presented demonstrates
that defendant committed the arson in fulfillment of a plan to kill his wife, and possibly her
sisters as well, and that the plan had existed at least from the time of the December 31, 2001,
assault.

2 ?[T]he prosecutor, after conducting a thorough investigation, could not specify the exact date
and time of the offenses.? Miller, supra at 47.

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Defendant argues that the offenses were unrelated because the offenses themselves were
different, occurred on different dates, at different locations, and involved different victims.
Defendant cites no authority for his proposition that these factors are determinative. As noted
above, this Court has found offenses related under MRC 6.120 when the victims were different,
the locations where they occurred were different, and when they happened at different times.
See People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). Defendant does not
clearly present an argument that, assuming the offenses were related, the trial court abused its
discretion in joining them. Consequently, we do not address this argument.
Defendant next argues that the trial court erred in admitting evidence of defendant?s
actions between the assault on December 31, 2001, and the assaults and arson on January 6,
2002, for the purpose of showing a propensity to commit bad acts. We disagree.
We note at the outset that defendant has not preserved this issue for appeal since he did
not object at trial to its introduction. MRE 103(a)(1); Aldrich, supra at 113; People v Griffin,
235 Mich App 27, 44; 597 NW2d 176 (1999). Consequently, this Court?s review is for a plain
error that affected defendant?s substantial rights. People v Carines, 460 Mich 750, 774; 597
NW2d 130 (1999). ?To avoid forfeiture of an unpreserved, nonconstitutional plain error, the
defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e.,
clear or obvious, and (3) the plain error affected substantial rights.? People v Jones, 468 Mich
345, 355; 662 NW2d 376 (2003), citing People v Grant, 445 Mich 535, 551; 520 NW2d 123
(1994); Carines, supra at 763.
Whether evidence of a defendant’s other crimes, wrongs, or acts is admissible is governed
by MRE 404(b). Evidence is admissible under this rule if it: (1) is offered for a proper purpose,
i.e., one other than to prove the defendant’s character or propensity to commit the crime, (2) is
relevant to an issue or fact of consequence at trial, and (3) is sufficiently probative to outweigh
the danger of unfair prejudice under MRE 403. People v Starr, 457 Mich 490, 496-497; 577
NW2d 673 (1998). The admissibility of evidence under MRE 404(b) necessarily hinges on the
relationship of the elements of the charge, the theories of admissibility, and the defenses
asserted. People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993), amended 445 Mich
1205 (1994).
MRE 404(b)(1) provides a list of ?other purposes,? for which other acts evidence might
be admissible. Among them are: ?proof of motive, opportunity, intent, preparation, scheme,
plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the
same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior
or subsequent to the conduct at issue in the case.? This list of proper purposes is not exclusive.
VanderVliet, supra at 65.
Relevant evidence is evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence. MRE 401; People v Martzke, 251 Mich App 282, 293; 651 NW2d 490
(2002). ?Logical relevance is the touchstone of the admissibility of uncharged misconduct
evidence.? Id. (internal citations omitted). ?Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.? MRE 403.

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Applying the above criteria to the evidence defendant claims was inadmissible, we find
that it was offered for a proper purpose, material, relevant, and more probative than prejudicial.
The prosecution claims that it offered the evidence of the January 4, 2002, incident ?to show that
[sic] the defendant?s intent to kill at the time of the firebombing.? The record indicates this
contention is no mere after-the-fact justification. During its closing, the prosecution, referring to
defendant?s actions on January 4, 2002, argued: ?Those actions of his tell me what is in this
man?s mind. And this case he was going to get [his wife?s] family.? Showing intent is one of
the proper purposes expressly listed in MRE 404(b)(1).
The evidence was also material, as required by MRE 404(b)(1). ?Evidence probative of a
matter ?in issue? is material.? Miller, supra, 186 Mich App 663. The elements of assault with
intent to commit murder is are: ?(1) an assault, (2) with the specific intent to commit murder, (3)
which, if successful, would make the killing murder.? People v Rockwell, 188 Mich App 405,
411; 470 NW2d 673 (1991). That defendant had the requisite intent to kill was ?in issue? in the
case at bar because defendant argued in closing that: ?There is no showing at all, no evidence at
all that [defendant] intended to kill anybody in this case.?
The evidence is also relevant, because the fact that defendant unequivocally expressed an
intent to kill someone makes the existence of an intent to kill his wife and her sisters more
probable than it would be absent such a statement. His violent actions and possession of a
crowbar during those visits are also relevant to the issue of whether he intended to kill.
Given the nature of the evidence to which defendant objects ? that defendant visited two
houses (one of them the very house he later firebombed), armed with what could reasonably be
seen as a weapon (a crowbar), shouting out clear statements of an intent to kill someone ? has
great probative value. Defendant, beyond his contention that the evidence was used only to
show his character, does not indicate how its probative value was substantially outweighed by
the danger of unfair prejudice under MRE 403.
Because the evidence concerning defendant?s acts and statements on January 4, 2002,
was offered for a proper purpose and its probative value was not substantially outweighed by the
danger of unfair prejudice, it was not plain error for the trial court to admit this evidence.
Finally, defendant contends that his attorney?s failure to object to the introduction of
evidence concerning his actions between the offenses for which he was convicted constitutes
ineffective assistance of counsel. Again, we disagree.
We note as a preliminary issue that defendant has not fully preserved this issue for
review, because he did not move for a new trial or for an evidentiary hearing. People v Sabin
(On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). Consequently, our
Court?s review is limited to the mistakes apparent on the record. If the appellate record does not
support defendant’s assertions, he has waived the issue. Id. at 658-659.
We review a trial court’s findings of fact for clear error, while questions of constitutional
law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). ?To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was below an objective standard of reasonableness under prevailing professional norms and there
is a reasonable probability that, but for counsel’s error, the result of the proceedings would have

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been different.? People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). In applying
this test, a court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. LeBlanc, supra at 578. ?Trial counsel is not
required to advocate a meritless position.? People v Snider, 239 Mich App 393, 425; 608 NW2d
502 (2000).
As noted above, the evidence of defendant?s actions between December 31, 2001, and
January 6, 2002, was admissible to prove defendant?s intent. We note also that our Supreme
Court has held that, ?MRE 404(b) does not apply to a defendant’s prior statements of intent.?
People v Goddard, 429 Mich 505, 518; 418 NW2d 881 (1988). Thus, an even stronger case is
made for the admissibility of the statements defendant made during this period. Given the likely
admissibility of the evidence, his attorney?s failure to object to it will not support a claim of
ineffective assistance of counsel. See Snider, supra at 424.
Affirmed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello